Lilly v. O'Brien

• Citation: 6 S.W.2d 715,224 Ky. 474
• Parties: LILLY v. O'BRIEN.
• Decision Date: 06 March 1928
• Court: Court of Appeals of Kentucky

6 S.W.2d 715

224 Ky. 474

LILLY v. O'BRIEN.

Court of Appeals of Kentucky

March 6, 1928

Rehearing Denied June 19, 1928.

Appeal from Circuit Court, Fayette County.

Two separate election contests by Grant E. Lilly against James J O'Brien. Judgments of dismissal, and plaintiff appeals. Affirmed.

Grant E. Lilly, of Lexington, for appellant.

Hunt Northcutt & Bush, D. C. Hunter, W. H. Townsend and Richard J Colbert, all of Lexington, for appellee.

WILLIS J.

Lexington is a city of the second class operating under the commission form of government. Section 3235c1 et seq., Kentucky Statutes. Grant E. Lilly and James J. O'Brien were nominated for mayor of the city at the primary election held on the third Saturday before the day for the regular election (section 3235c6, Kentucky Statutes), and were voted for at the election on November 8, 1927. The canvass of the returns of the election was completed on November 12, 1927, and it was found that O'Brien was elected to the office by a majority of 935 votes. The result was certified in triplicate, but the certificates of election were left in the form book until November 18, 1927, when O'Brien filed his expense account, as required by the Corrupt Practices Act (sections 1565b5, 1565b6, 1565b7), whereupon the certificates in proper form were delivered as directed by the Statutes (sections 1596a5, 1596a7). A contest was filed by Lilly against O'Brien on November 12, 1927, under section 1596a12, Kentucky Statutes. The regular judge declined to preside in the case, and Hon. Pelham Johnston was duly designated, commissioned, and qualified as special judge of the Fayette circuit court to try it. The plaintiff filed a motion and affidavit to disqualify the special judge, but he declined to retire from the bench. Judgment was rendered, dismissing the contest for lack of jurisdiction of the subject-matter, from which judgment the first appeal is prosecuted.

A second contest filed by Lilly on December 17, 1927, traveled the same course, and met a like fate, and the second appeal is from the judgment in that case. The two appeals have been argued together, and will be disposed of in a single opinion.

The question presented by the two appeals is whether the special judge designated to try the cases erred (1) in refusing to vacate the bench upon the affidavit of the plaintiff, (2) in dismissing the first contest for lack of jurisdiction of the subject-matter thereof, because the same was filed in advance of the final action of the county board of election commissioners, and (3) in dismissing the second contest because it was filed more than 10 days after the final action of the said board.

It is provided by statute that, if either party shall file with the clerk of the court his affidavit that the trial judge will not afford him a fair and impartial trial, the judge shall not preside in the case. Section 968, Kentucky Statutes.

The reasons set forth in appellant's first affidavit are, in substance, that the special judge is a law partner of Hogan Yancey, mayor of Lexington; that for some 18 months plaintiff had been attorney for and president of the Gas Consumers' League, organized to secure a reasonable price for gas furnished in the city; that thereby hostile feeling had been engendered between plaintiff and the city officials; that the newspapers had published accounts of the differences and debates, which were sometimes acrimonious; that the special judge was familiar with the facts stated and sided with Yancey; that Yancey was a partisan of O'Brien and a friend and supporter; that the special judge was a friend and supporter of O'Brien in the election; that plaintiff believed he had discussed the case with Yancey and entertained an opinion hostile to plaintiff; that plaintiff believed it would be impossible for the special judge to divest himself of his preconceived ideas of the case formed during and before the election; and that the ideas of the special judge "must be prejudicial and unfriendly to plaintiff because of his intimate association with Yancey, and his friendship for O'Brien."

It is quite impossible to spell out of this affidavit any material facts that could be construed as disqualifying the special judge to try the issues arising in a contest over the election of mayor. Indeed, the appellant does not insist, as clearly he could not, that the affidavit meets the requirements of the statute as construed by the decisions of this court, but the argument is advanced that the statute is mandatory and does not require a litigant to state any reasons for his belief that he cannot obtain a fair trial, but only his conclusion that the judge will not afford him a fair and impartial trial. The argument is fallacious. Such a construction of the statute would be impracticable and would lead to absurd results. If any litigant could remove a judge simply by filing an affidavit of his belief, no case could ever be brought to trial except by consent.

This particular section of the Statutes has been construed by this court in a long line of decisions and the construction thereof has become firmly imbedded in our jurisprudence. It is now too late to argue that a simple affidavit, without supplying disqualifying facts, can oust a judge of his right and duty to preside in the trial of a case.

In the German Insurance Co. v. Landram, 88 Ky. 433, 11 S.W. 367, 592, 10 Ky. Law Rep. 1039, the court said: "The fact or facts upon which the belief that the judge will not give the litigant a fair trial should and must be stated in the affidavit, and they must be of such a character as shall prevent the judge from properly presiding in the case. We do not mean to say the statement of the ground for belief must establish, if true, that the judge is a corrupt official, but we do mean to adjudge that such causes, and those of a like character, as have been noticed, are not sufficient, and there must be some fact stated, such as personal hostility of such a character, if that ground is relied on, as would prevent an official of personal integrity from presiding in the case; and of the sufficiency of the affidavit the trial judge must determine, and the question, if improperly decided, can be raised in this court, as in other cases, if an appeal is taken."

In White v. Jouett, 147 Ky. 197, 144 S.W. 55, the court reviewed the authorities up to that time and concluded that the affidavit there involved was insufficient because the charges must be so direct and certain that the affiant may be subject to criminal action if the charges should be false. The law has been so often and so recently announced and applied by this court that we deem it unnecessary to do more than cite a few of the cases. Stamp v. Commonwealth, 195 Ky. 404, 243 S.W. 27; Eastridge v. Commonwealth, 195 Ky. 126, 241 S.W. 807; Chreste v. Commonwealth, 178 Ky. 311, 198 S.W. 929; Browning v. Lovett, 94 S.W. 661, 29 Ky. Law Rep. 692; Sparks v. Colson, 109 Ky. 711, 60 S.W. 540, 22 Ky. Law Rep. 1369; Boreing v. Wilson, 128 Ky. 570, 108 S.W. 914, 33 Ky. Law Rep. 14; Hargis v. Marcum, 103 S.W. 346, 31 Ky. Law Rep. 795; Sullivan v. Commonwealth, 169 Ky. 801, 185 S.W. 134; Adams v. Gardner, 176 Ky. 257, 195 S.W. 412; Hargis v. Commonwealth, 135 Ky. 578, 123 S.W. 239.

When a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statute as if plainly written in it originally. 36 Cyc. 1144; Douglass v. Pike Co., 101 U.S. 677, 25 L.Ed. 968; McChesney v. Hager, 104 S.W. 714, 31 Ky. Law Rep. 1038.

It is clear that the affidavit in question did not measure up to the standard of the statute, as construed by this court, and the special judge did not err in this case in declining to vacate the bench.

The charter of the city of Lexington provides that all votes shall be cast by secret ballot in such manner and form as may be prescribed and all contested elections shall be tried as provided by general law for the election of state officers. Section 3172, Kentucky Statutes. The general law for the contest of the election of state officers is section 1596a12, Kentucky Statutes. It provides that a contest in the case of any elective municipal officer, where there is no other provision by law for determining the contest, shall be made by the filing of a petition in the circuit court of the county where the contestee resides, stating the grounds of contest relied on, and no other grounds shall afterwards be relied upon; and that the petition shall be filed and process issued thereon within 10 days after the final action of the board of canvassers of the city election. By section 1596a5 of the Statutes the county board of election commissioners is required to meet within 3 days after an election and open and canvass the returns and give triplicate or more written certificates of election over their signatures, of those who have received the highest number of votes for any office exclusively within the gift of the voters of the county, one copy of the certificate to be retained in the clerk's office, another delivered to each of the persons elected, and the other forwarded by the county clerk to the secretary of state at the seat of government. It is further provided that for offices not within the gift of the voters of a single county the number of votes received by the candidate must be certified and delivered to certain other officers specified.

It is clear that the office of mayor of Lexington is one within the gift of voters of Fayette county, residing in the city of Lexington, and is not within the gift of the voters of any other county or any part thereof. The county board of election commissioners completed the canvass of the returns on November 12, 1927, and made out in triplicate...